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Dent v. West Virginia, 129 U.S.

114 (1889)
Dent v. West Virginia
No. 119
Submitted December 11, 1888
Decided January 14, 1889
129 U.S. 114
ERROR TO THE SUPREME COURT OF APPEALS
OF THE STATE OF WEST VIRGINIA
Syllabus
The statute of West Virginia (§§ 9 and 15, chapter 93, 1882) which requires every
practitioner of medicine in the State to obtain a certificate from the State Board of
Health that he is a graduate of a reputable medical college in the school of medicine to
which he belongs, or that he has practiced medicine in the State continuously for ten
years prior to March 8, 1881, or that he has been found upon examination to be
qualified to practice medicine in all its departments, and which subjects a person
practicing without such certificate to prosecution and punishment for a misdemeanor,
does not, when enforced against a person who had been a practicing physician in the
State for a period of five years before 1881, without a diploma of a reputable medical
college in the school of medicine to which he belonged, deprive him of his estate or
interest in the profession without due process of law.
The State, in the exercise of its power to provide for the general welfare of its people,
may exact from parties before they can practice medicine a degree of skill and learning
in that profession upon which the community employing their services may confidently
rely, and, to ascertain whether they have such qualifications, require them to obtain a
certificate or license from a board or other authority competent to judge in that respect.
If the qualifications required are appropriate to the profession and attainable by
reasonable study or application, their validity is not subject to objection because of their
stringency or difficulty.
Legislation is not open to the charge of depriving one of his rights without due process
of law if it be general in its operation upon the subjects to which it relates, and is
enforceable in the usual modes established in the administration of government with
respect to kindred matters; that is, by process or proceedings adapted to the nature of
the case, and such is the legislation of West Virginia in question.Cummings v. Missouri, 4
Wall. 277, and Ex parte Garland, 4 Wall. 333, examined and shown to differ materially
from this case.

1882. 93. and no others. 1882. The following persons. pp. It involves the validity of the statute of that State which requires every practitioner of medicine in it to obtain a certificate from the state board of health that he is a graduate of a reputable medical college in the school of medicine to which he belongs. shall hereafter be permitted to practice medicine in this State. if he has not already done so and obtained the certificate hereinafter mentioned. viz. The statute in question is found in §§ 9 and 15 of an act of the State. (as the case may be) shall issue and deliver to him a certificate to that effect. one thousand eight hundred and eighty-one. or that he has practiced medicine in the State continuously for the period of 10 years prior to the 8th day of March. or to the two members thereof in his congressional district. 1881. to be qualified to practice medicine in all its departments. or said two members thereof." . surgery. These sections are as follows: "SEC. S. a misdemeanor punishable by fine or imprisonment. 246. or said two members thereof. shall. 9. and authorizing him to practice medicine in all its departments in this State. if the number of years therein stated be ten or more. or the attempt by any person to practice. or obstetrics in the State without such certificate. 116 8th day of March. give him a certificate to that fact. present his diploma to the State Board of Health. 245. and. unless called from another State to treat a particular case. and the person presenting the same be the graduate named therein. 115 The Court stated the case as follows: This case comes from the Supreme Court of Appeals of West Virginia. Every such person shall make and file with the two members of the State Board of Health in the congressional district in which he resides. in the discretion of the court." "Second. or that he has been found. c. and if the same is found to be genuine. S.:" "First. as is hereinafter mentioned. and makes the practice of. and such diploma and certificate shall entitle the person named in such diploma to practice medicine in all its departments in this State. unless they ascertain such affidavit to be false. Every such person shall. passed March 15. medicine. or if he resides out of the State in the district nearest his residence. or both. upon examination by the board. 248. St. All persons who are graduates of a reputable medical college in the school of medicine to which the person desiring to practice belongs. and was issued by such medical college. the said Board. amending a chapter of its Code concerning the public health. an affidavit of the number of years he has continuously practiced in this State. All persons who have practiced medicine in this State continuously for the period of ten years prior to the Page 129 U.Page 129 U. the said Board.

the diploma or certificate of another. shall examine him as herein provided. A person who is not such graduate. The members of the State Board of Health in each congressional district shall. for unlawfully engaging in the practice of medicine in that State in June. 1882. desiring to practice medicine in this State. without a diploma. who. or shall willfully swear falsely to any question which may be propounded to him on his examination. or. West Virginia. surgery. or attempt to file. a false or forged affidavit of his identity. upon conviction thereof. or a majority of them. or to any affidavit herein required to be made or filed by him. if no such paper is printed therein. and thereafter he shall have the right to practice medicine in this State to the same extent as if he had the diploma and certificate hereinbefore mentioned. or to perform a particular surgical operation in this State and who does not otherwise practice in this State. as there required. except as therein provided. at the discretion of the court. as his own. be confined in the penitentiary not less than one nor more than three years. upon full examination."Third. as herein provided for. but this section shall not apply to a physician or surgeon who is called Page 129 U. he shall. if he resides out of the State. and who has not so practiced in this State for a period of ten years. which notice shall be published at least once in each week for three successive weeks before the day of such meeting. 15. who is a physician (if there be such member of the local board) of the county in which the examination is held. 117 from another State to treat a particular case. And if any person shall file. or. or be punished by both such fine and imprisonment. shall grant him a certificate to that effect. in some newspaper of general circulation in such district. certificate. If any person shall practice. by publication in some newspaper printed in the county in which their meeting is to be held. if he has not already done so. or attempt to file. or imprisoned in the county jail not less than one month nor more than twelve months. or shall file. or license therefor. shall. medicine. they find him qualified to practice medicine in all its departments. and fined not less than one hundred nor more than five hundred dollars. and fined for every such offense not less than fifty nor more than five hundred dollars. the plaintiff in error was indicted in the State Circuit Court of Preston County. not being a physician or surgeon called from another State to treat a particular case or to . to the said two members of the State Board of Health in the congressional district nearest his place of residence. present himself for examination before the State Board of Health. he shall be guilty of a misdemeanor." Under this statute. or attempt to practice." "SEC. and if. at the discretion of the court. they. give at least twenty-one days' notice of the time and place at which they will meet for the examination of applicants for permission to practice medicine. or imprisoned in the county jail not less than six nor more than twelve months. together with a member of the local board of health. or obstetrics in this State without having complied with the provisions of § 9 of this chapter. S. or before the said two members thereof in the congressional district in which he resides.

at the time of the passage of the act of 1882. if the defendant had been or should be prevented from practicing medicine. and to review this judgment the case is brought here.' as defined by said Board of Health. after stating the facts as above. 121 MR. as required by § 9. but they.perform a particular surgical operation. that he has no certificate. acts of the Legislature of West Virginia. prescribing for the sick. S. Page 129 U. after retaining said diploma for some time. and appending to his name the letters. The court thereupon sentenced the defendant to pay a fine of $50 and the costs of the proceedings. 'M. from the year 1876. West Virginia. returned it to defendant with their refusal to grant him a certificate asked. and the defendant by his attorney. S. agreed upon the following statement of facts." These were all the facts in the case. states that the counsel . it would be a great injury to him. but had only been practicing six. and asked for the certificate as required by law. To this indictment the defendant pleaded not guilty. The case being taken on writ of error to the Supreme Court of Appeals of the State. that. namely: "That the defendant was engaged in the practice of medicine in the town of Newburg. and. JUSTICE FIELD. at the time charged in the indictment. nor was he then and there a commissioned officer of the United States army and navy and hospital service. and had been so engaged since the year 1876 continuously to the present time.' that he presented said diploma to the members of the Board of Health who reside in his congressional district. and thereupon he moved an arrest of judgment on the ground that the act of the legislature was unconstitutional and void so far as it interfered with his vested right in relation to the practice of medicine. delivered the opinion of the court. because. a jury having been called.' that he was not then and there a physician and surgeon called from another State to treat a particular case or to perform a particular surgical operation. the State by its prosecuting attorney. that. the judgment was affirmed. Page 129 U.. but has a diploma from the 'American Medical Eclectic College of Cincinnati. he had not been practicing medicine ten years. Whether the indictment upon which the plaintiff in error was tried and found guilty is open to objection for want of sufficient certainty in its averments is a question which does not appear to have been raised either on the trial or before the Supreme Court of the State. Preston county. and has during all said time enjoyed a lucrative practice. and to the ruling an exception was taken. Ohio. Upon them. passed March 15. chapter 93. which motion was overruled. in its opinion. said college did not come under the word 'reputable. as it would deprive him of his only means of supporting himself and family. 1882. The Presiding Justice of the latter Court. 118 publicly professing to be a physician. as they claimed. as aforesaid.D. the jury found the defendant guilty.

and based his claim for a review of the judgment on the ground that the statute of West Virginia is unconstitutional and void. business. and cannot be arbitrarily taken from them. the right to continue their prosecution -. the denial to the defendant of the right to practice his profession without the certificate required constituting the deprivation of his vested right and estate in his profession. in all its complicated parts. But there is no arbitrary deprivation of such right where its exercise is not permitted because of a failure to comply with conditions imposed by the State for the protection of society. from time immemorial.is often of great value to the possessors.that is. liberty. with which such pursuits have to deal. or property without due process of law. it has been the practice of different States. It is undoubtedly the right of every citizen of the United States to follow any lawful calling. The interest. or inferred from a certificate to them in the form of a diploma or license from an institution established for instruction on the subjects. and requires not only a knowledge of the properties of vegetable and mineral substances. some requiring years of study and great learning for their successful prosecution. their possession being generally ascertained upon an examination of parties by competent persons. which he had previously acquired. . The nature and extent of the qualifications required must depend primarily upon the judgment of the State as to their necessity. or profession he may choose. The unconstitutionality asserted consists in its alleged conflict with the clause of the Fourteenth Amendment which declares that no State shall deprive any person of life. S. and attainable by reasonable study or application. It has to deal with all those subtle and mysterious influences upon which health and life depend. all vocations are open to everyone on like conditions. sex. The power of the State to provide for the general welfare of its people authorizes it to prescribe all such regulations as in its judgment will secure or tend to secure them against the consequences of ignorance and incapacity. but of the human body. subject only to such restrictions as are imposed upon all persons of like age. If they are appropriate to the calling or profession." acquired in them . It is only when they have no relation to such calling or profession. or are unattainable by such reasonable study and application. Here. as well as of deception and fraud. This right may in many respects be considered as a distinguishing feature of our republican institutions. All may be pursued as sources of livelihood. or. no objection to their validity can be raised because of their stringency or difficulty. the "estate.for the defendant expressly waived all objections to defects in form or substance of the indictment. and condition. Few professions require more careful preparation by one who seeks to enter it than that of medicine. that they can operate to deprive one of his right to pursue a lawful vocation. as it is sometimes termed. scientific and otherwise. 122 than their real or personal property can be thus taken. any more Page 129 U. to exact in many pursuits a certain degree of skill and learning upon which the community may confidently rely. As one means to this end.

that he possesses the requisite qualifications. to say that legislation is not open . The same reasons which control in imposing conditions. should be required for continuance in its practice. and prevented from continuing in his practice without it. as it from time to time advances in its attainments for the relief of the sick and suffering. but for the earnestness with which the plaintiff in error insists that. Due consideration. or a more accurate knowledge is acquired of the human system and of the agencies by which it is affected. by being compelled to obtain the certificate required. and exclude such as are forbidden. for the protection of society may well induce the State to exclude from practice those who have not such a license. that he possesses such learning and skill shall present evidence of it by a certificate or license from a body designated by the State as competent to judge of his qualifications. or his property. and place him under the protection of the law. or who are found upon examination not to be fully qualified. issued by an authority competent to judge in that respect. as well as their influence upon the mind. therefore. and their requirement was there designed to secure the subject against the arbitrary action of the Crown. Reliance must be placed upon the assurance Page 129 U. or a more thorough acquaintance is obtained of the remedial properties of vegetable and mineral substances. It is sufficient. We perceive nothing in the statute which indicates an intention of the legislature to deprive one of any of his rights. to give to the terms "due process of law" a definition which will embrace every permissible exertion of power affecting private rights. whether relating to his life. he is deprived of his right and estate in his profession without due process of law. 124 equivalent to "the law of the land.and their relation to each other. They were deemed to be Page 129 U. his liberty. to secure the citizen against any arbitrary deprivation of his rights. As we have said on more than one occasion." In this country. upon compliance with which the physician is allowed to practice in the first instance. The physician must be able to detect readily the presence of disease. They come to us from the law of England. the requirement is intended to have a similar effect against legislative power -. but comparatively few can judge of the qualifications of learning and skill which he possesses. S. from which country our jurisprudence is to a great extent derived. S. Legislation must necessarily vary with the different objects upon which it is designed to operate. No one has a right to practice medicine without having the necessary qualifications of learning and skill. 123 given by his license. it may be difficult. Everyone may have occasion to consult him. by offering to the community his services as a physician. and prescribe appropriate remedies for its removal.that is. may call for further conditions as new modes of treating disease are discovered. It would not be deemed a matter for serious discussion that a knowledge of the new acquisitions of the profession. and the statute only requires that whoever assumes. if not impossible. for the purposes of this case.

S. 1881. S. by process or proceedings adapted to the nature of the case. 714. desires. extending even to their words. 115 U. v. 333. by regular proceedings adapted to the case. S. Humes. except those who may be called for a special case from another State. and sympathies. for the plaintiff in error did not submit himself to the examination of the Board after it had decided that the diploma he presented was insufficient. 96 U. Neff. The oath which they were to take embraced 30 distinct affirmations respecting their past conduct. adopted in 1865. As said by this court in Yick Wo v. and of Ex parte Garland. But no such imputation can be made. 519. and following certain pursuits within its limits.that is. See also Pennoyer v. 512.to the charge of depriving one of his rights without due process of law if it be general in its operation upon the subjects to which it relates and is enforceable in the usual modes established in the administration of government with respect to kindred matters -. the principles upon which they are supposed to rest. in the proceedings under the statute. It applies to all physicians. S. S. S. 4 Wall. prescribed an oath to be taken by persons holding certain offices and trusts. 118 U. and review the history of their development. Justice Matthews: "When we consider the nature and the theory of our institutions of government. S. S. There is nothing of an arbitrary character in the provisions of the statute in question. It imposes no conditions which cannot be readily met. 733. S. 277. California. It authorizes an examination of the applicant by the Board of Health as to his qualifications when he has no evidence of them in the diploma of a reputable medical college in the school of medicine to which he belongs. 104. 516. The great purpose of the requirement is to exclude everything that is arbitrary and capricious in legislation affecting the rights of the citizen. 369. Railroad Co.that is. we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. 95 U. 4 Wall. Davidson v. there should be any unfair Page 129 U. In the first of these cases. S. The cases of Cummings v. and it is made enforceable in the mode usual in kindred matters -. They were required to deny that they had done certain things.110 U." 118 U. or has not practiced in the State a designated period before March. Every person unable to take this oath was declared incapable of holding in the State . New Orleans.96 U. 356. upon which much reliance is placed. 97. Hopkins. it appeared that the Constitution of Missouri. in our judgment.95 U. or had manifested by act or word certain desires or sympathies. do not. support the contention of the plaintiff in error. 125 or unjust action on the part of the Board in refusing him a certificate. State of Missouri. we doubt not that a remedy would be found in the courts of the State. If.S. 118 U. Hurtado v.115 U.speaking by Mr. 107.

to take the oath. the court held that the requirement of its constitution amounted to a legislative deprivation of their rights. Many of the acts which parties were bound to deny that they had ever done were innocent at the time they were committed. or other manager of any corporation. if he failed to comply with this requirement. trusts. A large portion of the people of Missouri were unable to take the oath. On appeal to the Supreme Court of the State. religious society. the Court held that the oath was not required as a means of ascertaining whether the parties were qualified for those pursuits and professions. and was sentenced to pay a fine of $500. priest. or "of acting as a professor or teacher in any educational institution. councilman. or position should. it was declared that his office. No person. or functions" specified without taking the oath." then existing or thereafter established by its authority. or solemnize marriages. or other clergyman of any religious persuasion. 126 were prescribed as a punishment for holding or exercising any of the "offices. or congregation. or positions mentioned was required. or trustee. after the expiration of the 60 days. for many of them. as to them. and. or of holding any real estate or other property in trust for the use of any church. public or private. trust. professions. "to practice as an attorney or counselor at law. the judgment was affirmed." And every person holding. and. minister. S." nor after that period could "any person be competent as a bishop. positions. or denomination to teach or preach. punishable by imprisonment in the penitentiary. and false swearing or affirmation in taking it was declared to be perjury. or in any common or other school. and the deprivation of a right to continue in their offices if the oath were not taken was held to . elder. trusts. any of the offices."any office of honor. and that. trust." Fine and imprisonment Page 129 U. become vacant. deacon. but was exacted because it was thought that the acts deserved punishment. A priest of the Roman Catholic Church was indicted in a circuit court of Missouri and convicted of the crime of teaching and preaching as a priest and minister of that religious denomination without having first taken the oath. As many of the acts from which the parties were obliged to purge themselves by the oath had no relation to their fitness for the pursuits and professions designated. or of being an officer. there was no way of inflicting punishment except by depriving the parties of their offices and trusts. and the case was brought on error to this Court. was allowed. without taking the oath. or profit under its authority.ipso facto. sect. director. at the time the constitution took effect. and to be committed to jail until the same was paid. within 60 days thereafter.

except the President. Page 129 U. and afterwards in the senate of the congress of the Confederacy. The Court held that the law. after the 4th of March." he followed the State. 1862. S. Carskadon. They only determine that one who is in the enjoyment of a right to . 1865. The doctrine of this case was affirmed in Pierce v. Congress. 128 There is nothing in these decisions which supports the positions for which the plaintiff in error contends. or of the Court of Claims. and its object was to exclude from practice in the courts parties who were unable to affirm that they had not done the acts specified. or naval departments of the Government. and was therefore invalid.be a penalty for a past act. as it could not be taken by large classes of persons. in 1865. until he had taken and subscribed the oath prescribed by the act of July 2. He produced this pardon. which was violative of the Constitution. or be allowed to appear and be heard by virtue of any previous admission. Garland had been admitted to the bar of the Supreme Court of the United States previous to the passage of the act. on the 2d of July. and the rule of the Court which had adopted the clause requiring its administration in conformity with the act of Congress. He was a citizen of Arkansas. Mr. Congress had passed an act prescribing an oath to be taken by every person elected or appointed to any office of honor or profit under the United States. and was a member of that senate at the time of the surrender of the Confederate forces to the armies of the United States. he received from the President of the United States a full pardon for all offenses committed by his participation. 127 salary or other emoluments. The oath related to past acts. no person should be admitted as an attorney and counselor to the bar of the Supreme Court. after its passage. provided that. in exacting the oath as to his past conduct as a condition of his continuing in the practice of his profession. 1865. and in that respect was subject to the same objection as that made to the clauses of the Constitution of Missouri. 16 Wall.it appeared that. 234. and asked permission to continue as an attorney and counselor of this Court without taking the oath required by the act of January 24. to the bar of any Circuit or District Court of the United States. before entering upon the duties of his office.that of Ex parte Garland -. among other things. and. military. S. by a supplemental act. imposed a penalty for a past act. 1865. and was one of her representatives. In the second case mentioned -. This latter act. and. direct or implied. extended its provisions so as to embrace attorneys and counselors of the courts of the United States. and before being entitled to his Page 129 U. 1862. in the rebellion. On the 24th of January. and when that State passed an ordinance of secession which purported to withdraw her from the Union. and by another ordinance attached herself to the so-called "Confederate States. Subsequently. either in the civil. it was held to operate against them as a legislative decree of perpetual exclusion. first in the lower house.

The law of West Virginia was intended to secure such skill and learning in the profession of medicine that the community might trust with confidence those receiving a license under authority of the State. completeness. and one who has been admitted to practice the profession of the law. Official Supreme Court caselaw is only found in the print version of the United States Reports. and may not reflect current legal developments. Judgment affirmed. many of which had no bearing upon their fitness to continue in their professions. verdicts or settlements. . or past expressions of desires and sympathies. cannot be deprived of the right to continue in the exercise of their respective professions by the exaction from them of an oath as to their past conduct respecting matters which have no connection with such professions. Between this doctrine and that for which the plaintiff in error contends there is no analogy or resemblance. We make no warranties or guarantees about the accuracy.preach and teach the Christian religion as a priest of a regular church. or adequacy of the information contained on this site or information linked to from this site. Justia caselaw is provided for general informational purposes only. Please check official sources. The Constitution of Missouri and the act of Congress in question in those cases were designed to deprive parties of their right to continue in their professions for past acts.